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CDS ZombiesAnna GelpernAmerican University Washington College of Law G. Mitu GulatiDuke University - School of Law August 29, 2012 European Business Organization Law Review 13, Forthcoming American University, WCL Research Paper No. 2012-37 Abstract: This paper examines the contract interpretation strategies adopted by the International Swaps and Derivatives Association (ISDA) for its credit derivatives contracts in the Greek sovereign debt crisis. We argue that the economic function of sovereign credit default swaps (CDS) after Greece is limited and uncertain, partly thanks to ISDA’s insistence on textualist interpretation. Contract theory explanations for textualist preferences emphasise either transactional efficiency or relational factors, which do not fit ISDA or the derivatives market. We pose an alternative explanation: the embrace of textualism in this case may be a means for ISDA to reconcile the competing political demands from state regulators and its market constituents. We describe categories of contracts susceptible to such political demands, and consider when and why textualism might be the preferred response.
Number of Pages in PDF File: 37 Keywords: CDS, derivatives, sovereign debt, Greece, Europe, financial crisis, ISDA JEL Classification: F34, F36, G15, G28, G38, K12, K23 Accepted Paper SeriesDate posted: September 3, 2012 ; Last revised: October 15, 2012Suggested CitationContact Information
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